Liggett & Myers Tobacco Co. v. Collier

• Decision Date: 09 October 1893
• Citation: 89 Iowa 144,56 N.W. 417
• Parties: LIGGETT & MYERS TOBACCO CO. v. COLLIER ET AL.
• Court: Iowa Supreme Court

89 Iowa 144

56 N.W. 417

LIGGETT & MYERS TOBACCO CO.

v.COLLIER ET AL.

Supreme Court of Iowa.

Oct. 9, 1893.

Appeal from district court, Lee county; J. M. Casey, Judge.

Action of replevin. Verdict and judgment for defendants. Plaintiff appeals.Craig, McCrary & Craig, for appellant.

F. T. Hughes and James C. Davis, for appellees.

KINNE, J.

1. Plaintiff, a corporation, was a manufacturer of tobacco in St. Louis, Mo. Defendants Collier, Robertson & Hambleton were a firm of wholesale grocers, residing and doing business in the city of Keokuk, Iowa. At and prior to December, 1890, said firm had placed a standing order with plaintiff for shipment of 35 boxes of “Star” tobacco on every Monday morning. A shipment was made to said firm in accordance with said order on Monday, December 8, 1890. On said day, and after the shipment had been made, plaintiff received the following letter from said firm, dated the 6th of December, 1890: “Gents: Please omit our shipment of this week on Star tobacco, and follow next week as usual, and oblige, yours, etc., Collier, Robertson & Hambleton.” Plaintiff at once wrote to said firm that the tobacco had been shipped before the receipt of their letter, and said they would omit the next week's shipment. No reply was received to this letter. The tobacco arrived in Keokuk on December 9, 1890, and was delivered to said firm at their store. On December 10, 1890, defendant firm executed to the defendant Smith, trustee, two chattel mortgages on all property of the firm, to secure certain creditors in the aggregate sum of about $83,000. The trustee on the same day took possession of all the property covered by the mortgages, including the tobacco in controversy. Thereafter plaintiff began this action, and replevined said tobacco. Under the direction of the court, the jury returned a verdict for the defendant Smith, trustee.

2. It is insisted that the mortgages under which the defendant trustee holds the goods are void, because the acknowledgments thereto are defective. The acknowledgment to the first mortgage recites that on December 10, 1890, before the notary, “personally appeared Collier, Robinson & Hambleton, by Hugh Robertson, of said firm, personally known to me to be the identical person who signed the name of the said firm to the above mortgage as mortgagors, and to be a member of said firm, and acknowledged the execution thereof to be the voluntary act and deed of said firm, for the uses and purposes therein expressed; and also on the same day the other members of said firm acknowledged the execution of said instrument to be the voluntary act and deed of said firm.” The acknowledgment of the second mortgage recites that before the notary “personally appeared Collier, Robinson & Hambleton, by each one of said firm, and who are personally known to me to be the identical persons who signed the mortgage, and to be a member of said firm, and one of whom signed the name of said firm to the above mortgage as mortgagors, and acknowledged the execution thereof to be the voluntary act and deed of said firm, for the uses and purposes therein expressed.” For the purposes of this action it is not material whether the acknowledgments were defective or not, since the instruments were the act of the partnership, and, as between the parties thereto, were valid without any acknowledgment, and inasmuch as it appears without dispute that the mortgagee trustee took actual possession of all the property covered by said instruments several days prior to the commencement of plaintiff's action. The effect of an acknowledgment would be to entitle the mortgages to be filed for record and recorded, when they would be notice to the world. The same purpose is accomplished if the mortgagee actually takes possession of the property. There can be no better notice to a claimant of property which is chattel mortgaged than the fact that the mortgagee is in possession of it. “If a mortgageetakes possession of the mortgaged chattels before any other right or lien attaches, his title under the mortgage is good against everybody if it was previously valid between the parties, although it be not acknowledged or recorded, or the record be ineffectual by reason of any irregularity. The subsequent delivery cures all such defects, and it also cures any defect there may be through an insufficient description of the property. The taking possession is an identification and appropriation of the specific property in the mortgage.” Jones, Chat. Mortg. § 178; Cobbey, Chat. Mortg. § 626; Fromme v. Jones, 13 Iowa, 474;Gaar v. Hurd, 92 Ill. 326.

3. After the introduction of the testimony, the court orally directed the jury to return a verdict for the defendant. Exceptions were taken because the direction was not in writing. Such a direction is in no sense an instruction, such as is contemplated by Code, §§ 2784-2789, inclusive. Stone v. Railroad Co., 47 Iowa, 82;Milne v. Walker, 59 Iowa, 186, 13 N. W. Rep. 101;Young v. Mattress Co., 79 Iowa, 419, 44 N. W. Rep. 693.

4. The main question involved in this case is, in whom was the title or right of possession to the tobacco when the writ in this action was served? If by reason of the acts of the parties the title to the tobacco passed to the defendant firm, then the trustee was the rightful holder of it when this action commenced, and the court below properly directed a verdict for him. The order for the tobacco having been accepted, and acted upon by plaintiff, by delivering the goods to the railway company for carriage to the defendant firm, it was not within the power of said firm to successfully countermand it by any notice, no matter when mailed, which did not reach the seller prior to...